Farnham v. Richardson , 91 Me. 559 ( 1898 )

Wiswell, J.

Bill in equity to enforce a lien for materials furnished for and used in the construction of a double frame-house in the city of Portland.

The case was heard by a single justice and comes here upon appeal from his decree. From the facts found by him and stated in his decree, and from the report of the testimony accompanying the appeal, it appears: that the defendants Gribben were the owners of the land upon which the building was erected, that they contracted with the defendant Richardson for its construction, that the plaintiff upon the order of Richardson, furnished materials that went into the construction of the building to the amount of $422.20; and that the last of the materials furnished by the plaintiff, with the exception of the transaction hereafter referred to, was upon September 19, 1895. The plaintiff filed his lien claim in the clerk’s office of the city of Portland upon November 6, 1895, more than forty days after September 19, 1895.

But upon October 1,1895, the plaintiff furnished a door for this building and made a charge therefor of $3.50 under the following circumstances, as stated in the finding of facts contained in the deci’ee: “ The men of the defendant Richardson finding that one of the doors delivered by the plaintiff would not fit the frame prepared for it, made the fact known to one of the defendants Gribben, who thereupon telephoned to the plaintiff’s office, requesting an exchange of the door delivered for one of a different size but otherwise similar, and that on the next day he took the door delivered by the plaintiff into his wagon, carried it to the plaintiff’s place of business and there exchanged it for a new door different in size only, which he carried to the houses and it was there hung by the workmen of the defendant Richardson. The exchange was infer-ably made at the request of the defendant Richardson and for his convenience only. Upon the day that said door was exchanged, the plaintiff credited Richardson upon his books with the door returned at the price originally charged for the same, to wit, $3.35, and charged for the door delivered in exchange, which was two inches larger one way than the door returned, $3.50, or fifteen cents more than for the door returned.”

The justice considered that the transaction of October 1, was of too trifling a character to allow the time, within which the lien claim must be filed in the city clerk’s office, to commence running at that date and decreed that the bill be dismissed with costs.

The statute provides that a lien of this kind shall be dissolved unless the claimant files in the office of the clerk of the town in which the building is] situated, a true statement of his claim, “ within forty days after he ceases to labor or furnish materials.” When did this claimant cease to furnish materials ? On the first day of October, with the knowledge, and in fact at the request of one of the owners, but inferably at the request of the contractor and for his convenience, he furnished a door that was of the kind and size desired that was used in the construction of this building, and took back, at a less price, a smaller doom which he had previously furnished.

This exchange was not intended as a gratuity. It can not be claimed that the charge was an afterthought, made for the purpose of extending the time within which the claimant could file his lien claim for the materials furnished previously, because at the time of the transaction, when only some eleven days had elapsed since the materials next before this had been furnished, and when he had ample time, nearly thirty days, to secure his lien by filing his claim, he made a charge upon his books for the door. The case contains no intimation that the charge for the door furnished was too much, or that the credit for the one returned was too little. Nor is it suggested that the necessity for the change was caused by any fault of the plaintiff so that no charge whatever should be made.

The case must therefore be distinguished from Cole v. Clark, 85 Maine, 356, where the service relied upon was a mere act of friendly accommodation, performed under such circumstances as to repel any implication of a promise to pay.

This court has several times held that a lien once lost by the expiration of the time within which the statement required by statute must be filed with the town clerk, can not be revived by additional work. Darrington v. Moore, 88 Maine, 569; Woodruff v. Hovey, ante, p. 116. But this principle is not applicable to the case under consideration because, as we have already seen, the claimant’s lien was not lost when this material was furnished; he then had nearly thirty days left within which- to file his lien statement. Nor can it be said, as in Woodruff v. Hovey, supra, that the material was furnished for the purpose of reviving a lien already lost, because of the further reason that the claimant did not volunteer to furnish this material. He did so at the request of one of the owners for the contractor.

Nor is the principle laid down in Baker v. Fessenden, 71 Maine, 292, that “one single lien can not cover several distinct alterations in the saíne building made at different times and independent of each other,” applicable to this case. None of the materials furnished by this claimant were for alterations or repairs. The door furnished October first was as much for the construction of the buildings as were any of the materials previously supplied. The building was not at that time completed. All of the materials were furnished for the construction of the building.

Whether the transaction amounted to a charge of $3.50 for a new door and a credit of $3.35 for the smaller one returned, or whether it should be regarded simply as a charge of the difference in price, we do not think the fact that the material last furnished was of a trifling character should prevent the lien from continuing for forty days from that time. The statute makes no distinction as to the amount of the labor performed or the value of the material furnished. If such a distinction is desirable, it must be made by legislative, not judicial, action.

It is undoubtedly true that the trifling character of the labor last performed or material last furnished may often throw more or less light upon the question, whether the service was at the time intended to be gratuitous and was only afterwards relied upon to save a lien which would otherwise have expired, or not. But when a lien claimant furnishes material for the construction of a building by virtue of a contract with a person other than the owner, but with the knowledge and consent of the owner, the lien given him by statute will not be dissolved if, within forty days after he ceases to furnish material, he files in the clerk’s office the required statement. And we do not think that his lien depends at all upon the amount or value of the material last furnished, provided all the other conditions necessary to the maintenance of the lien exist.

The plaintiff’s lien in this case should take precedence of the two mortgages upon the property, one dated September 19, and the other October 1, 1895, but both recorded upon the latter day, because all of these materials were furnished by virtue of a contract made with the defendant Richardson, the builder, with the knowledge and consent of the owners before October first. Whether the general arrangement between Richardson and the lien claimant, whereby the latter was to furnish all of the material in his line for the construction of the house, could be considered as a binding contract upon the plaintiff or not, is immaterial. All the materials, other than the new door, were ordered and furnished on September 19, or before, while the door was ordered and the plaintiff agreed to furnish it on the day before it was furnished, and consequently on the day before the mortgages were recorded. Morse v. Dole, 73 Maine, 351.

The entry will therefore be,

Decree reversed. New decree in accordance with this opinion.